Political & Social Control Through Criminal Laws: politics of criminalisation in India

The marginalising tendency of criminal law has been effectively used to further a goal of political, social and economic marginalisation.

Naveed Mehmood Ahmad is currently working as a Research Fellow at Vidhi Centre for Legal Policy. He works in the area of criminal justice reform and has previously worked on the issue of criminalization of drug use in India. 

Human behaviour is governed by socially constructed norms that create acceptable paths of conduct. Any nonconformity with this is termed, by the mainstream, as ‘deviant behaviour’. When a conduct challenges societal sensibilities, recourse is often taken to laws for a more formal and sustained sanction. Criminal laws reflect this socially constructed idea of ‘deviant behaviour’ and categorize conduct that attract society’s condemnation as ‘crimes’. Since there is an underlying social and political current that drives criminal law, the legal construction of crime changes with the societal construction of deviance. This willingness of the State to co-opt social condemnation risks criminalising trivial acts or conduct that may offend sensibilities of the majority or dominant communities.

Conceptualising ‘crime’ and stricter penalties to satiate demands of the society often leads to a crisis of over-criminalisation and over-penalisation. It also institutionalises societal divisions and leads to marginalisation. For years, millions of people across the world have been criminalised for the mere expression of their sexual orientation or for consumption of prohibited drugs. Most legal systems today continue to respond to dominant value systems either by retaining or by removing criminal sanctions against drug use and homosexuality. Similarly, differing value systems continue to reflect in the criminal laws that seek to regulate, faith, personal relationships, eating habits etc.

Since, societal sensibilities govern conceptualisation of crime, their effect can also be seen in enforcement of criminal law. Inherent prejudices tend to categorise only certain kinds of deviant behaviour and even communities as criminal. This is evident from enforcement of criminal laws across the world, where racial/religious minorities are disproportionately affected by law enforcement.

Mirroring trends across the globe, the Indian prison statistics show that the percentage of scheduled caste and scheduled tribe prisoners in Indian jails is substantially higher, when compared to their proportion in the population. Research also suggests that Muslims are likely to be overrepresented in prisons as pre-trial and undertrial detainees and therefore tend to be over-incarcerated. As analysed here, 22 states in India have a higher proportion of Muslim prisoners than the Muslim population in the state. In a more recent trend, the politics of criminalisation has changed its character. It has now been used as an effective tool to further a goal of political, social and economic marginalisation.

Although preventive detention laws have for long been used to subvert judicial processes and fair trial, over the past few years it seems these laws have been exceedingly used to against Muslims. Forming only 14% of India’s population, Muslims form 16.6% of the convicts, 18.7% of the undertrial prisoners and 35.8% of the detainees in Indian prisons. The percentage of Muslims detainees has grown exponentially in Uttar Pradesh where it has gone from 33% in 2017 and 58% in 2018 to 83.9% in 2019. In addition to preventive detention, laws against cow slaughter, religious conversion and triple talaq – a form of instant divorce practiced by some Muslims, are pushing more Muslims into the criminal justice system.

Rooted in Brahmanical tradition, laws against slaughter of bovine animals criminalise millions of beef eating Hindus, Muslims, Christians etc. and marginalise farmers and cattle traders who now find it rather perilous to keep cows. Although the more vociferous opposition to these laws has come from Dalit groups trying to resist this attempt at maintaining caste hegemony, the manner in which the laws have been used in the recent years reflects a rather concerted political action. Over the past few years, due to an overwhelmingly communal rhetoric, dozens of people – mostly Muslims, have been lynched by mobs for transporting cows and for allegedly eating, storing or carrying beef. It has been reported that 98% of such violent incidents, since 2010, have taken place after the current dispensation came into power in 2014.  Instead of attempting to put an end to this vigilante violence, the State has chosen to reinforce the beef ban through laws; institutionalise cow protection groups; register cases against victims and shield perpetrators. As the debate on cow protection reignites, a more recent push for enacting an anti-cow slaughter law in Karnataka has been termed to be state sanctioned violence against Muslims and Dalits under the cover of law.

Criminalisation of Muslims was taken a step ahead when the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. Although the Act is in accordance with the constitutional bench decision of the Supreme Court and declares ‘triple talaq’ to be void, having no effect on the marriage, it goes on to criminalise the act of pronouncing ‘talaq’ thrice, attracting an imprisonment of three years. While the government justified the enactment by stating that it will bring justice to Muslim women, it has been termed as an attempt to criminalise Muslim men rather than an attempt to emancipate Muslim women.

Male chauvinism and Islamophobia resurfaced as legal paternalism when anti-conversion laws began to be reshaped to have a chilling effect on inter-religious marriages. Although the recently passed Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 has been criticised for criminalising the right to choice, it is even more problematic for it has roots in the idea of preserving caste through endogamy. Building on claims that Hindu women are being converted to Islam under the garb of marriage, the new anti-conversion laws, while being blatantly sexist are aimed at vilifying Muslim men and to create more avenues for pushing them into the criminal justice system. With dozens of people already arrested under the law, it has proved to be a shot in the arm for communal forces operating on ground.

The concerns discussed above are a mere reflection of the unprecedented change occurring in India’s social and political life. While this may continue for the foreseeable future, there is an emergent need to revisit the debates on the extent of criminal law. The fact that criminal law can be so easily guided to achieve political ends, is reflective of the fact that its superstructure is not based on solid principles, immune from divisive political agendas. Although the ‘harm principles’ have been central to the discussion on the extent of criminal law, they have never really been universally followed, perhaps because legal systems haven’t conceptualised a force behind them. While stating that shifting and subjective notions of right and wrong cannot be a valid justification for restriction of fundamental rights, the Naz Foundation judgement envisioned constitutional morality as guiding framework for criminal laws and not popular morality. If the tendency of criminal law to co-opt social and political goals is to be checked and its marginalising tendency eradicated, the policy of criminalisation must be guided by constitutional principles.

Contact

Naveed Mehmood Ahmad works as a Research Fellow with the Criminal Justice team at Vidhi Centre for Legal Policy, New Delhi.

Email: ahmadnaveed183@gmail.com

Photographs courtesy of author 

A closing space for civil society?

Francesca Kilpatrick reports from a roundtable discussion on the criminalisation of dissent held at the University of Brighton

Francesca Kilpatrick

Francesca Kilpatrick reports from a roundtable discussion on the criminalisation of dissent held at the University of Brighton.

 

 

 

On 1 March 2019, the Centre for Spatial, Environmental, and Cultural Politics (SECP) at the University of Brighton, financially supported by the British Society of Criminology, hosted a seminar and roundtable discussion entitled Criminalising Dissent: A Closing Space for Civil Society. The event was organised by BSC members Roxana Cavalcanti and Raphael Schlembach, as well as Deanna Dadusc and myself.

The conference gathered lawyers specialising in protest law, activists and academics to consider the growing trend of the criminalisation of protest and activism, and the relationship between protest and criminal justice. This trend has been researched extensively in North America and Europe, but the research capacity in the UK is more limited. This area is particularly deserving of renewed attention since the past decade saw the UN Special Rapporteur for the Rights to Freedom of Peaceful Assembly and of Association identify a ‘closing space for civil society’ in the UK, with specific concerns raised about counter-extremism strategies, surveillance of political activists, policing of protests and the Trade Union Act.

Event attendees heard about the ongoing undercover policing inquiry, the police role in defining acceptable dissent in the anti-fracking protests, and the legislation battles surrounding the Stansted 15 trial.

Lydia Dagostino, Director of Kellys Solicitors in Brighton and an experienced civil liberties lawyer, led the first discussion. Her talk on the undercover policing inquiry set out the current status of the almost 10-year investigation into police spying activities on over 1,000 groups, some of which are still unknown, including grieving families for justice, trade unions and activist collectives. She detailed the public dissatisfaction with the legal proceedings, and the resistance of the police to public scrutiny. This transitioned into a discussion on the constructed narratives of the inquiry; ‘good’ core participants (grieving families) versus ‘bad’ core participants (direct action protestors), and the police as victims of the inquiry suffering more than those spied upon.

Valerie Aston (University of East Anglia) and Will Jackson (Liverpool John Moores University) led a spirited second discussion on police responses to anti-fracking protests. Their research, some of it in collaboration with the Network for Police Monitoring, to track anti-fracking policing revealed that academic work suggesting an increase in human-rights based policing behaviour does not universally reflect protestors’ experiences. They discussed how anti-fracking protest is constructed as violent and criminal, with large arrest numbers being cited as proof of police necessity, when closer examination reveals most arrests were for non-violent behaviour. They also outlined various police methods of defining and punishing ‘unacceptable’ protest, including involving counterterrorist forces, as well as restraining orders on acquittal even for not-guilty verdicts.

Following and building upon discussion of these concerning developments, Graeme Hayes (Aston University) led a third session on the Stansted 15 trial and the new ways legislation is being used against activists. He explained how the Aviation and Maritime Security Act (AMSA) 1990 introduced after the Lockerbie bombing was used to construct airports as sites of democratic exception, as being airside without authorisation was argued to be inherently risky and endangering life by taking up police resources. He also discussed attempted use of a ‘necessity defence’ by the Stansted 15 as a depoliticised defence, and raised the question of how to critique wider practices and structures.

This provoked a wider discussion on the implications of certain legal defences, for example the ‘frack-free three’ successful use of a ‘good character defence’. Issues over Extinction Rebellion’s use of the ‘necessity’ guilty plea were also raised in relation to the youth climate strikes, as the child legal system is designed to be escaped via a not-guilty plea.

The afternoon sessions began with a workshop, with small groups of 2-4 identifying emergent themes and questions, which were then collated into displays that informed a wider group discussion. Emergent themes included:

  • Legitimacy in protest and policing
  • Constructing the activist as ‘good’ or ‘bad’
  • Surveillance/monitoring and data collection on protestors
  • The legal process as a disruption or punishment
  • Construction of protest as inherently violent
  • Use of counterterrorist forces
  • New use/abuse/misuse of existing laws and defences
  • Case law designed for crime being used for activism

These themes provoked discussion surrounding the political roles of the police and the diffusion and hybridisation of police functions throughout the state; disabled activists referred to the DWP, youth activists and mothers with children referred to social services, the NHS as a border force in data collection and so on. Finally, it was concluded that police-academic partnerships make it difficult to write and teach critically about police behaviour. These partnerships are common in the field of policing studies and provide increased data access, but this collaboration can be restrictive as any critique by the researcher risks damaging the relationship and preventing further study.

The last session of the conference addressed outcomes and potential for further collaboration between attendees.

Finally, the event’s collection of abstracts and short articles was highlighted as particularly useful.

All of the discussions throughout the day highlighted the need for combined expertise in addressing this important trend in contemporary criminal justice and protest behaviour. We hope all attendees found the promise of further collaboration to answer these questions as exciting as we did.

 

Also published on the SECP blog.

Contact

Francesca Kilpatrick is a PhD student at Brighton University, looking at the securitisation trend in UK climate change policy and how this impacts climate activism and protests.

Email: F.Kilpatrick1@uni.brighton.ac.uk

Twitter: https://twitter.com/ecofrancesca

Images: courtesy of the author and Flickr

The punitive shift towards the criminalisation of homelessness

In the UK, following the financial crisis of 2007 – 2008, the government response took the form of austerity measures. This has had far reaching implications, one of which being the punitive shift towards the criminalisation of vulnerable and marginalised people within society, such as those affected by homelessness.

Sharon Hartles photo

Sharon Hartles is a MA student with the Open University. She has an interest in state-corporate crimes, white-collar crimes and how these exacerbate social harms. Sharon has worked in the education sector for 10 years and believes that knowledge is paramount to challenging the crimes of the powerful which are permitted and not prohibited by black letter law.

The number of people living in poverty in the UK dramatically increased as a consequence of the governments shift towards market-based capitalism, underpinned by the social-economic reforms endorsed in the 1980s. This situation was further exacerbated by the financial global crisis of 2007 – 2008, which led to the UK government bailing out the British banks to prevent a collapse of the British banking system. Unsurprisingly, the ramification of the government’s decision to bail out the banks initially took the form of a stimulus programme which was superseded in 2010 by austerity measures. The government’s spending cuts, as part of these measures, led to a reduction in the budget deficit which has had far reaching impacts on the poorest and most vulnerable/marginalised people in the UK, including those affected by homelessness.

Since the onset of austerity in 2010, the estimated number of people sleeping rough in England has increased year on year from 2010 – 2017. Approximately, 4,751 people bedded down outside overnight on a snapshot night in autumn 2017 compared to 1,768 people on a snapshot night in autumn 2010. Rough sleeping has therefore more than doubled over these seven years. However, the reason why rough sleepers are becoming more visible in British cities and public open spaces is because support services and hostel availability are diminishing, as a direct result of the government cuts and reform to areas such as welfare.

In July 2014, the Home Office published its reform of anti-social behaviour powers to support the effective use of new powers to tackle anti-social behaviour which takes place in public and open spaces. According to the Home Office reform information, “where the actions of a selfish few ruin these spaces, through public drunkenness, aggressive begging, irresponsible dog ownership or general anti-social behaviour, these places can be lost to the communities who use them”. This powerful form of labelling stigmatises homelessness as othering, the act by which groups of individuals become represented as an outsider and not one of us. Such stigmatisation associated with homelessness limits exposure, opposition, active resistance and the publics’ outrage, enabling the government to punitively criminalise homelessness and enforce this through the criminal justice system.

In England, between 2015 – 2016, 2,365 people were prosecuted for committing vagrancy-related offences including begging. Prior to the financial crisis and the introduction of austerity measures 1,510 people were prosecuted during 2006 – 2007. Vagrancy-related offences have increased by more than 70% in one decade.  In 2014, three men were nearly prosecuted for taking discarded food (cheese, tomatoes and mushrooms) from a refuse bin. In 2015, sixty-two rough sleepers were arrested by the Sussex Police for accepting money from the public. On the other hand, no members of the public were arrested for offering and donating money to rough sleepers. The resurrection of the Dickensian vagrancy law together with the new Public Space Protection Orders which have been enacted in over 50 local authorities has resulted in a growing number of vulnerable homeless people being fined, given criminal convictions and even imprisoned for street drinking, defecating, urinating, begging and rough sleeping in public spaces.

In a bid to save money the UK government implemented a crime control approach to homelessness, concerned with promoting security and controlling crime, in favour of a social welfare approach, concerned with promoting equality, inclusion and well-being. Such a decision to shift to an enforcement-based approach was underpinned by the following political and economic factors: the financial global crisis of 2007 – 2008, coupled with the government’s choices to bail the banks out and introduce austerity measures to reduce government spending.  This causal relationship between the government’s policy to shift towards a crime control approach to homelessness resulted in the punitive shift towards the criminalisation of homelessness. In contrast, only 28 people were charged and only 5 people were convicted in the UK for their part in the financial crisis (bankers – guilty of white-collar crimes), which was considered by economists to be the worst and most significant crisis since the Great Depression of the 1930s. The tax-payers in the UK have borne the financial brunt of the bankers’ crimes since 2010 and will continue to do so for the foreseeable future.  However, there are others such as those affected by homelessness who are fighting for their right to exist, not to be criminalised and not to lose or have their liberty restricted.

While homelessness in the UK has increased by 134% since 2010 in line with the imposed austerity measures, homelessness in Finland has fallen by 35% over the same period of time. In contrast to the UK government ushering in its crime control approach that punitively criminalises homelessness, the Finnish government is promoting a social welfare approach and is committed to abolishing homelessness altogether. It is clear that the UK government has scapegoated homelessness to whitewash the financial deficit resulting from the bankers’ white-collar crimes (repackaging loans and playing roulette games with the stability of global markets). As is common practice through the exercise of ‘smoke and mirrors’, the government has orchestrated the punitive shift towards the criminalisation of homelessness in order to divert the publics’ gaze away from the real crimes and the real criminals who are responsible for causing the worst financial crisis in global history.

The original form of this article was posted on  sharonhartles.weebly.com and is republished here with the permission of the author.

Contact

Sharon Hartles

Email: sh28739@my.open.ac.uk

Twitter: @shartles1

 

Copyright free image: from Flickr